Does the Constitution Disqualify Donald Trump?
Section 3 is real. And it’s fabulous.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. — Section 3 of the 14th Amendment, U.S. Constitution.
Happy Friday.
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Jack Smith wants to start Trump’s Trial of the Century on January 2; and later today, as Kim Wehle explains, Judge Tanya Chutkan will hold a hearing on Smith’s motion for a protective order in the case. “The government filed the motion immediately following Trump’s announcement on Truth Social, posted the day after his ‘not guilty’ plea last week, that ‘IF YOU GO AFTER ME, I’M COMING AFTER YOU!’”
As we gird our legal loins for all of this, I want to call your attention to this rather gobsmacking development:
Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office.
In a lengthy article that will be published in the University of Pennsylvania Law Review, the two legal scholars— William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — write that section 3 of the Fourteenth Amendment “forbids holding office by former office holders who then participate in insurrection or rebellion.”
Their conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”
“The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.”
“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.
As the Times notes, this is not Resistance porn; it is the product of two well-known conservative legal scholars who “are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.”
So, eyebrows are raised.
The usual suspects — including James Bopp Jr., “who has represented House members whose candidacies were challenged under the provision” — are shrugging off the argument. But Steven G. Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, told the Times that the article was “a tour de force.”
Indeed it is. And you should read it (or at least these excerpts.)
The authors review Trump’s efforts to overturn the 2020 election and the events of January 6th.
This was undoubtedly a serious assault on the American constitutional order. Not since the Civil War has there been so serious a threat to the foundations of the American constitutional republic. It takes little imagination to describe the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d’etat.
These actions culminated in the incitement and execution of a violent uprising at the Capitol on January 6, 2021—an “insurrection” aimed at preventing Congress and the incumbent Vice President from performing their constitutional responsibilities to count the votes for President and Vice President in the 2020 election.
Several of the people involved in these events—most notably the defeated President, Donald Trump—had previously taken oaths to support the Constitution. If they engaged in or gave aid and comfort to an insurrection against the constitutional government, Section Three would appear to bar them from holding office again.
The article then addresses the key questions about the constitutional provision:
How does Section Three’s disqualification apply—does it apply—to those who planned, supported, encouraged, assisted, incited, or otherwise participated in the events surrounding the attempted overturning of the presidential election of 2020?
Does Section Three’s century-and-a-half old disqualification, designed for the aftermath of the Civil War, even remain legally operative in the first place? If so, what must be done to enforce Section Three?
Does it require implementing legislation or criminal trials (or impeachments) before its disqualification kicks in? How does Section Three interact with the rest of the constitutional order—are its subjects protected by constitutional principles of attainder, anti-retroactivity, due process and free speech? And if Section Three does apply—to what and to whom?
What actions count as having “engaged in insurrection or rebellion” against the Constitution of the United States or having “given aid or comfort to the enemies thereof”? Which officials are covered by Section Three’s exclusions?
Buckle up for their conclusions:
First. Section Three remains legally operative. It is no less part of the Constitution than the other provisions of the Fourteenth Amendment. It is not a dead letter. The Constitution is a binding, authoritative written text, not a collection of specific historical purposes and intentions. Where the text applies, it applies. Its legal force is not limited to the immediate problem or purpose that prompted its enactment. Section Three is not limited to the circumstances of the Civil War and Reconstruction, even if the meaning of its terms may be illuminated by that experience and history.
Nor has Section Three somehow been “repealed” by Congress’s two major nineteenth-century statutes granting amnesty to those covered by Section Three. …
Second. Section Three is legally self-executing. That is, Section Three’s disqualification is constitutionally automatic whenever its terms are satisfied. Section Three requires no legislation or adjudication to be legally effective….[No] prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands. Section Three is ready for use. …
Third. Section Three supersedes (or satisfies) earlier-enacted constitutional provisions to the extent of any supposed conflict between them…
To the extent Section Three’s disqualification for having “engaged in insurrection or rebellion” or giving “aid or comfort” to “the enemies” might turn out to be in tension with the First Amendment’s protection of freedom of speech, Section Three supersedes the First Amendment to the extent of any true conflict.
To be sure, the proper construction of Section Three’s terms (“insurrection,” “rebellion,” “aid and comfort,” “enemies”) will leave much speech and advocacy completely free. But in the cases where it does not, the terms of Section Three, not the constructions of the First Amendment, decide where the line is.
This leads to the article’s fourth and final group of points: Three’s disqualification is sweeping in its terms…
[Taking] Section Three seriously means that its constitutional disqualifications from future state and federal officeholding extend to participants in the attempted overturning of the presidential election of 2020, including former President Donald Trump and others.
Trump Baits the Judge
The ex-POTUS’s ugly threats against Jack Smith, Fani Willis, and Judge Chutkan will only escalate. Plus, the fake electors are the real voter fraud, there’s likely evidence of crimes inside Trump’s Twitter account, and the risks of prosecution vs letting him walk. Lawfare’s Ben Wittes joined me for the latest episode of The Trump Trials.
You can listen to the whole thing here.
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Some kind words from Joe Klein
From his newsletter, “Sanity Clause”:
Jonathan V. Last believes there’s a serious case to be made for Joe Biden to pardon Donald Trump. I’ve played with this idea in the past but, after Jack Smith’s coup-attempt indictment, I’m leaning more toward Charlie Sykes’ position: if you try to stage—pace Rufo—an attempt to overthrow the U.S. government, you must be punished.
And I’m grateful every day for The Bulwark, which publishes Last and Sykes and is, indeed, a bulwark of Sanity in a dangerous and silly public square.
Nota bene: The debate continues. Keep an eye out for JVL’s response to my response.
Quick Hits
1. Solving Student Loans and College Costs
2. Let’s Have a Face-Off on Trump’s Indictment
On Tuesday, The Times published a compelling piece by a Harvard Law School professor, Jack Goldsmith, warning of the consequences of prosecuting a former president during an election campaign.
My view is that the American government faces greater risks if prosecutors don’t try to punish Trump for his coup attempt. As I wrote on the day of the indictment, it’s necessary to prosecute Trump on these facts — not because a conviction is inevitable but because our nation cannot set a precedent that presidents enjoy a zone of impunity for their misconduct that no other citizen enjoys.
I wouldn’t just be comfortable bringing this case to a jury; I’d be eager to make my argument. But I’d also know that Trump’s legal team has its own defenses, and it’s far from certain that a judge or a jury will agree with the prosecution’s case. But democracies aren’t sustained without risk, and prosecuting Trump is a risk our nation needs to take.
Cheap Shots
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The Supreme Court, not voters or even legislators, likely will have the final say on Section Three, if push comes to shove on the issue. Which in turn serves as yet another unwelcome reminder that the 2016 presidential election outcome quite reasonably can be called the most significant one in American history, with an additional nod to Mitch McConnell for both jobbing Merrick Garland out of his likely seat and providing the fast-track pathway for Amy Coney Barrett to become a last-minute addition in late 2020. Filed under: Choices Have Consequences.
Perfect. Then use it to disqualify the lot of the Congressional enablers.